..........................................................................."Contrariwise," continued Tweedledee, "if it was so, it might be; and if it were so, it would be, but as it isn't, it ain't. That's logic."

Saturday, September 10, 2005

Padilla

Update: reading over the District Court Opinion, I think the Fourth Court of Appeals vastly overstated the stipulation. It goes straight to he's guilty so the president has the right to hold him as an enemy combatant. Completely misss the issue.

Yesterday the 4th Circuit Court of Appeals reversed the summary judgment granted to Padilla that had held that he needed to be charged or released. As I said in a comment on this post at the Volokh Conspiracy, I yield to no one a greater outrage at the fact that President Bush claimed that he had a right to detain and hold deny all basic rights to a U.S. citizen on U.S. soil solely on an affidavit. When I saw the headline yesterday about the opinion I was angered and began composing in my head a pretty good rant about it.

That being said, when I read the opinion, I actually found myself maybe okay with the Court's position, (though I am little confused as to Padilla's attorney's strategy). The key to me is footnote one. When I first scanned the opinion, I kept wondering why is the Court just accepting that he is an enemy combatant, but then I actually read the footnote and it became clear. For the purposes of the summary judgment motion, Padilla stipulated that the govenrment allegations are true. To me this seems to be stipulating away the best part of his case. The Court is left with the question of whether the the president has the authority to detain an undisputed current member of Al Qaeda captured on U.S. soil.

21 Aug. 17981 Ops. Atty. Gen. 84 Having taken into consideration the acts of the French republic relative to the United States, and the laws of Congress passed at the last session, it is my opinion that there exists not only an actual maritime war between France and the United States, but a maritime war authorized by both nations. Consequently, France is our enemy; and to aid, assist, and abet that nation in her maritime warfare, will be treason in a citizen or any other person within the United States not commissioned under France. But in a French subject, commissioned by France, acting openly according to this commission, such assistance will be hostility. The former may be tried and punished according to our laws; the latter must be treated according to the laws of war.

I have thought it my duty to make this communication in consequence of the information you received from Rhode Island, of the intentions of a Frenchman, whose name I do not now call to mind, who is said to be somewhere in this country, on the business of buying ships and supplies of a military kind, for the West Indies. He should be apprehended and tried as a traitor, unless he has a commission, and acts according to it; in which case he should be treated as an enemy, and confined as a prisoner of war.

If Padilla admits the things in the affidavit he should be tried for treason and be found guilty. Treating him as an enemy combatant with a "commission" (1) is actually doing him a favor.

The problem, of course, is that Padilla probably does not actually admit the allegations or have a "commission". Therefore, in my view, he must be charged and tried for treason and given all related process. The limits on treason are one of the great rights the Founders put in the Constitution itself. But given the posture of the summary judgment, the Fourth Circuit did not reach that question.

(1) For the moment I am putting aside the distinction between Al Qaeda and a nation state.

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